Tuesday, September 8, 2009

Watch Out H&M – the CFDA Want Their Designs Back

On August 21st members of the San Francisco fashion and law community came together for the latest IFCSF event hosted by Coblentz, Patch, Duffy & Bass LLP at their beautiful offices in the Ferry Building. A panel of local designers and industry professionals moderated by Partner Zuzana Ikels shared their views on the Design Piracy Prohibition Act, a bill that is currently pending in Congress. Strongly supported by the Council of Fashion Designers of America and spearheaded by Council President Diane von Furstenberg, the bill provides protection for designers of their unique designs against fashion piracy. According to Ikels, the bill has about a 50/50 chance of being passed into law this fall because it is so controversial. Serving on the IFCSF panel were: Jennifer Evans, President and Founder of the Evans Group Inc.; Jeanne Feldkamp, Founder and Creative Director of the 615 Project ; Amy Fritz, President of Ecouture; Louisa Parris, Womenswear Designer & Visiting Tutor, Academy of Art ; Colleen Quen, Designer and Professor; Gus Harput, Co-owner of Harput’s Market, and Karen Frank, partner at the Coblentz law firm and President of the Copyright Society of the USA.

The Act is similar to anti-piracy laws in Europe, and essentially gives designers three years of copyright protection for "original" designs, if they register their designs within the first three months of the first time the design has been presented to the public. If infringement is found, designers can seek damages of the higher of up to $250,000 per infringement, or $5 per copy. The legislation, if passed, would apply to original designs created after bill becomes law.

As fashion is a $350 billion industry in America, supporters are not taking this lightly and are gearing up to do battle against the main offenders – fast fashion chains like H&M, Forever 21, and Zara. And these designers do have a right to be angry – too often their designs will barely float off the runway before a copycat version is sold at the local mall. Couture designer Quen, who is known for her stunning gowns and architectural shapes, spoke of being a victim to fashion piracy when a collar she had worked on for over a year showed up on someone else’s design. What becomes tricky is deciding what has enough originality to be protected, and how to distinguish between protectable originality, and unprotectable functional elements of design, or mere trends. Opponents of the bill say that it will become impossible for young designers to get started, and that the nature of fashion is copying and taking from other designs.

According to Quen and like-minded designers like Thakoon who are more established in the industry, too often their art is compromised. On the CFDA web site Thakoon says “…Many more young people are excited about the opportunities that America’s leadership in fashion provides, and like me, are trying to build a career here. All too often however, we find our ability to do so is undermined by pirates who, instead of laying out the money we do for research, pattern makers, to mount runway shows, etc, they just copy the end product of all our investments and, by virtue of having a cost free design, sell our design in the market place cheaper than we can". When asked by Ikels what role trends play in design, Quen said, “I don’t know if I’d call my work a trend, but it does come from my soul and I treat my work like a painting, so each piece has an inspiration whether it’s from an architect or artist, a person I met, or it could even be from an insect. Whatever is in my life at that time inspires me. I’m like the vessel and I start translating so I get inspired and it becomes sculpture. I don’t get inspired by trend.”

Ikels posed the example of a Marc Jacobs jacket with 80s-inspired elements. As the 80s are back in style, how would a designer stay on trend with a similar jacket without counterfeiting the design? Parris said, “You would hope that I’d take that on board, look at elements from the 80s, do the research, maybe study an 80s rock band, but the way I taught myself and learned through education, is that those elements are fundamental, but at the end of the day I have to put my fingerprints all over it and make it something original.” The audience was shown another example of a Trovata striped cardigan that had been copied exactly by Forever 21. It was such a blatant copy that Trovata filed a lawsuit. But can a striped cardigan really be considered an original design? According to supporters – yes, if there is something unique about it like the style of the buttons or the fit of the armhole.

If the legislation passes, a free searchable database would be provided of all designs with requests for protection, and I imagine large fashion houses expanding their employee rosters to welcome law librarians.

As split as the vote is around this new legislation, the opinions among the panelists and audience were split as well. I think the biggest benefactors of this legislation are the more established designers who have the time and funds to sue for copyright infringement. However, if laws like this already exist and work in Europe, why wouldn’t they work here? Perhaps this will allow for even more creativity in design. And for companies who have made a living copying others, they’ll either need to get original or get out. What if this were to open up a new era of fashion in America where we might even see, daresay, a new kind couture. With more freedom and time to design without the fear of knockoffs, think about what the design community could really do. The big question is whether anyone on a “real world” budget could afford to buy clothes anymore.

Thanks to all who sponsored the event: VehicleSF, Swan's Neck Vodka, LandrinUSA, Warren Difranco, and dj Melvin "j". For more photos of the event visit the IFCSF on Facebook. An opposing viewpoint of this controversial subject coming soon.